James Brown v. Rawson-Neal Psychiatric Hosp.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES FLAVY COY BROWN, on behalf of himself and those similarly No. 14-16458 situated, Plaintiff-Appellant, D.C. No. 2:13-cv-01039- v. JCM-PAL

RAWSON-NEAL PSYCHIATRIC

HOSPITAL; LEON RAVIN, M.D., OPINION

individually and in his official capacity as Associate Medical Director; ANURAG GUPTA, M.D., individually; SOUTHERN NEVADA

ADULT MENTAL HEALTH SERVICES;

CHELSEA SZKLANY, individually and in her official capacity as Administrator; NEVADA BUREAU OF

HEALTH CARE QUALITY AND

COMPLIANCE; NEVADA DIVISION OF

HEALTH, DIVISION OF MENTAL

HEALTH AND DEVELOPMENTAL

SERVICES; RICHARD WHITLEY, in his official capacity as Administrator of the Nevada Division of Public and Behavioral Health, formerly Nevada Division of Health and the Nevada Division of Mental Health & Developmental Services; NEVADA

DEPARTMENT OF HEALTH AND

BROWN V. RAWSON-NEAL PSYCHIATRIC HOSP.

HUMAN SERVICES; MIKE WILLDEN,

in his official capacity as Director; LINDA J. WHITE M.D., individually and in her official capacity as Statewide Psychiatric Medical Director of the State of Nevada; KYLE…

Dissent by Judge GRABER

OPINION

Appellant James Flavy Coy Brown appeals from the district court’s judgment dismissing his state and federal claims against Southern Nevada Adult Mental Health Services, Chelsea Szklany, Mike Willden, Richard Whitely, Leon Ravin, M.D., Anurag Gupta, M.D., and Kyle De-vine (the “State Defendants”), arising out *1146 of his February 11, 2013 discharge from the Rawson-Neal Psychiatric Hospital in Las Vegas, Nevada.and subsequent transportation to Sacramento, California. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

I.

The district court initially dismissed Brown’s federal constitutional and statutory claims without prejudice under Fed. R. Civ. P. 12(b)(6), including his claims under 42 U.S.C. § 1983 for alleged violations of his rights under the Eighth, Fourth, and Fourteenth Amendments to the United States Constitution; alleged violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 , et seq.; and alleged violations of the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, et seq. The district court also granted Brown leave to amend his complaint, but Brown, who was and is represented by counsel,…

dissenting:

I respectfully dissent. In my view, we should exercise discretion to consider the Rule 41(b) issue; the- district court abused its discretion by dismissing the case as a 'sanction under Rule 41(b), rather- than on the merits under Rule 12(b)(6); and on the merits the district court erred in ruling that Plaintiff failed to state a federal claim. *1148 Accordingly, I would reverse and remand for further proceedings.

1. We have discretion to address Rule 41(b).

As the majority recognizes, we have discretion to consider the Rule 41(b) issue. United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992). At least two of the reasons that motivated us to reach the unraised issue in Ullah also are present here. First, the Rule 41(b) issue was raised—and discussed at length—in the Defendants’ answering brief. Id. Second, Plaintiffs failure to raise the issue has not prejudiced Defendants’ defense; in their brief, Defendants both responded to the substance of Plaintiffs opening brief and put forth an argument concerning the Rule 41(b) issue. Id. Plaintiff, for his part, responded to the Rule 41(b) argument in his reply brief.

The majority correctly points out that, unlike…